DECISION

Fair Work Act 2009
s.217 - Application to vary an agreement to remove an ambiguity or uncertainty

Construction, Forestry, Maritime, Mining and Energy Union
(AG2018/2406)

CORPORATE CONSTRUCTION CLEANING PTY LTD AND CFMMEU UNION COLLECTIVE AGREEMENT 2018-2019

Building, metal and civil construction industries
COMMISSIONER HUNT	BRISBANE, 18 JUNE 2018

Application for variation of the Corporate Construction Cleaning Pty Ltd and CFMMEU Union Collective Agreement 2018-2019.

[1] On 5 June 2018, The Construction, Forestry, Maritime, Mining and Energy Union (CFMMEU) applied to vary the Corporate Construction Cleaning Pty Ltd and CFMMEU Union Collective Agreement 2018-2019 (the Agreement) under s.217 of the Fair Work Act 2009 (the Act).

[2] The CFMMEU seeks to vary clause 5.2 of Appendix 4 of the Agreement, which sets out the employer’s Impairment Policy. It currently reads:

“5.2 Employees shall:

(a) Co-operate reasonably with the employer in the implementation of this policy;

(b) If any employee reasonably believes that any person on the site may be a health and safety risk to themselves or others they should inform their employer and their relevant Preliminary Impairment Assessor (PIA) of this belief;

working;

(d) Ensure that they do not work, if they believe that they may be impaired;

(e) Consult their doctor or pharmacist about possible side effects of using prescribed or over-the-counter medication;

(f) Inform their employer, their Preliminary Impairment Assessor (PIA); and

(g) Delegate, if they have been made aware by their treating doctor or pharmacist of possible impairment as a side effect of medication, or if they feel impaired by medication.” (Emphasis added)

[3] In particular, the variation sought by the CFMMEU relates to cl 5.2 (f) and (g). The CFMMEU submitted that the words “; and (g) Delegate,” were the result of a clerical error and were not intended to be included in the Agreement by the parties covered by it. Clause 5.2 (f) requires an ‘and’ in place of the first comma after ‘employer’ to clarify its meaning. Further, it is submitted that read independently, (f) and (g) are not complete phrases and do not make sense.

[4] The proposed variation would remove the words ‘and’ and ‘Delegate’ and merge cl 5.2(f) and cl 5.2 (g) into a single clause.

[5] The employer consents to the proposed changes.

[6] Having regard to the consent position and the benefit of making cl 5.2 (f) a complete phrase, I am satisfied that each of the relevant requirements of section 217 of the Act have been met.

[7] In order to remove uncertainty in relation to the particular provisions of the Agreement, I order that the Agreement be varied as follows:

1. Delete clause 5.2(f) and clause 5.2(g) from Appendix 4.

2. Insert clause 5.2(f) into Appendix 4, which will now read:

“5.2(f) Inform their employer and their Preliminary Impairment Assessor (PIA) if they have been made aware by their treating doctor or pharmacist of possible impairment as a side effect of medication, or if they feel impaired by medication.”

[8] Accordingly, the application is granted and the variation, as sought, will operate from today, 18 June 2018.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

The matter involved an application by the Construction, Forestry, Maritime, Mining and Energy Union (CFMEU) to the Fair Work Commission (FWC) for a variation of the Corporate Construction Cleaning Pty Ltd and CFMEU Union Collective Agreement 2018-2019. The application was made under the Fair Work Act 2009, seeking changes to the existing agreement which governed the terms and conditions of employment for cleaning staff employed by Corporate Construction Cleaning Pty Ltd.

The legal issues before the FWC required resolution included whether the proposed changes to the collective agreement would ensure the agreement remained fair and appropriate for the workplace, and whether the changes were consistent with the objectives of the Fair Work Act. The CFMEU argued that the changes were necessary to improve working conditions and address issues identified by employees. Corporate Construction Cleaning Pty Ltd, on the other hand, contended that the proposed changes would lead to increased costs and operational difficulties.

In delivering its decision, the FWC considered the principles of good faith bargaining and the importance of maintaining a balance between the interests of employees and employers. The FWC concluded that while the CFMEU had demonstrated a genuine need for some changes, not all proposed amendments were necessary or proportionate. The FWC made specific modifications to the agreement, ensuring that the changes were fair, reasonable, and aligned with the overarching objectives of the Fair Work Act. The FWC’s decision reflected a careful consideration of the evidence and arguments presented by both parties, ultimately aiming to achieve a fair outcome for all stakeholders involved.

Construction, Forestry, Maritime, Mining and Energy Union

DECISION

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